Text of the Emergency Assistance for Secure Elections Act of 2008

This bill was introduced in a previous session of Congress but was killed due to a failed vote for cloture, under a fast-track vote called "suspension", or while resolving differences on April 15, 2008. The text of the bill below is as of Apr 14, 2008 (Reported by House Committee).

Strike out all after the enacting clause and insert
the part printed in italic

April 14, 2008

Committee on Science
and Technology discharged; committed to the Committee of the
Whole House on the State of the Union and ordered to be printed

For text of introduced bill, see copy of bill as
introduced on January 17, 2008

A BILL

To direct the Administrator of General
Services to reimburse certain jurisdictions for the costs of obtaining paper
ballot voting systems for the general elections for Federal office to be held
in November 2008, to reimburse jurisdictions for the costs incurred in
conducting audits or hand counting of the results of the general elections for
Federal office to be held in November 2008, and for other
purposes.

1.

Short title

This Act may be cited as the
Emergency Assistance for Secure
Elections Act of 2008.

2.

Payments to Certain
Jurisdictions Conducting 2008 General Elections

(a)

Reimbursement for
Conversion to Paper Ballot Voting System

(1)

In
general

The Election
Assistance Commission shall pay to each eligible jurisdiction an amount equal
to the sum of the following:

(A)

The documented reasonable costs paid or
incurred by such jurisdiction to replace any voting systems used to conduct the
general elections for Federal office held in November 2006 that did not use or
produce a paper ballot verified by the voter or a paper ballot printout
verifiable by the voter at the time the vote is cast with paper ballot voting
systems.

(B)

The documented reasonable costs paid or
incurred by such jurisdiction to obtain non-tabulating ballot marking devices
that are accessible for individuals with disabilities in accordance with the
requirements of section 301(a)(3) of the Help America Vote Act of 2002.

(C)

The documented reasonable costs paid or
incurred by such jurisdiction to obtain ballot marking stations or voting
booths for the protection of voter privacy.

(D)

The documented reasonable
costs paid or incurred by such jurisdiction to obtain paper ballots.

(E)

The documented reasonable costs paid or
incurred by such jurisdiction to obtain precinct-based equipment that tabulates
paper ballots or scans paper ballots.

(F)

The documented reasonable
administrative costs paid or incurred by such jurisdiction that are associated
with meeting the requirements for an eligible jurisdiction.

(2)

Eligible jurisdiction
defined

In this subsection,
an eligible jurisdiction means a jurisdiction that submits to
the Commission (and, in the case of a county or equivalent jurisdiction,
provides a copy to the State), at such time and in such form as the Commission
may require, an application containing—

(A)

assurances that the jurisdiction conducted
regularly scheduled general elections for Federal office in November 2006 using
(in whole or in part) a voting system that did not use or produce a paper
ballot verified by the voter or a paper ballot printout verifiable by the voter
at the time the vote is cast;

(B)

assurances that the jurisdiction will
conduct the regularly scheduled general elections for Federal office to be held
in November 2008 using only paper ballot voting systems;

(C)

assurances that the jurisdiction has
obtained or will obtain a sufficient number of non-tabulating ballot marking
devices that are accessible for individuals with disabilities in accordance
with the requirements of section 301(a)(3) of the Help America Vote Act of
2002;

(D)

assurances that the jurisdiction has
obtained or will obtain a sufficient number of ballot marking stations or
voting booths for the protection of voter privacy;

(E)

assurances that the
jurisdiction has obtained or will obtain a sufficient number of paper
ballots;

(F)

such information and
assurances as the Commission may require to make the determinations under
paragraph (1); and

(G)

such other information
and assurances as the Commission may require.

(3)

Determinations of
reasonableness of costs

The
determinations under paragraph (1) of whether costs paid or incurred by a
jurisdiction are reasonable shall be made by the Commission.

(4)

Paper ballot voting
system defined

In this
subsection, a paper ballot voting system means a voting system
that uses a paper ballot marked by the voter by hand or a paper ballot marked
by the voter with the assistance of a non-tabulating ballot marking device
described in paragraph (1)(B).

The Commission shall
pay to each eligible jurisdiction an amount equal to the documented reasonable
costs paid or incurred by such jurisdiction to retrofit direct recording
electronic voting systems so that the systems will produce a voter verifiable
paper record of the marked ballot for verification by the voter at the time the
vote is cast, including the costs of obtaining printers to produce the
records.

(2)

Eligible jurisdiction
defined

In this subsection,
an eligible jurisdiction means a jurisdiction that submits to
the Commission (and, in the case of a county or equivalent jurisdiction,
provides a copy to the State), at such time and in such form as the Commission
may require, an application containing—

(A)

assurances that the jurisdiction has
obtained or will obtain a printer for and retrofit each direct recording
electronic voting system used to conduct the general elections for Federal
office held in November 2008 so that the system will produce a voter verifiable
paper record of the marked ballot for verification by the voter;

(B)

such information and assurances as the
Commission may require to make the determinations under paragraph (1);
and

(C)

such other information
and assurances as the Commission may require.

(3)

Determination of
reasonableness of costs

The
determinations under paragraph (1) of whether costs paid or incurred by a
jurisdiction are reasonable shall be made by the Commission.

The Commission shall
pay to each eligible jurisdiction an amount equal to the documented reasonable
costs paid or incurred by such jurisdiction to obtain, deploy, and tabulate
backup paper ballots (and related supplies and equipment) that may be used in
the event of the failure of a direct recording electronic voting system in the
regularly scheduled general elections for Federal office to be held in November
2008.

(2)

Eligible jurisdiction
defined

In this subsection,
an eligible jurisdiction means a jurisdiction that submits to
the Commission (and, in the case of a county or equivalent jurisdiction,
provides a copy to the State), at such time and in such form as the Commission
may require, an application containing—

(A)

assurances that the
jurisdiction will post, in a conspicuous manner at all polling places at which
a direct recording electronic voting system will be used in such elections, a
notice stating that backup paper ballots are available at the polling place and
that a voter is entitled to use such a ballot upon the failure of a voting
system;

(B)

assurances that the
jurisdiction counts each such backup paper ballot cast by a voter as a regular
ballot cast in the election, and does not treat it (for eligibility purposes)
as a provisional ballot under section 302(a) of the Help America Vote Act of
2002, unless the individual casting the ballot would have otherwise been
required to cast a provisional ballot;

(C)

such information and assurances as the
Commission may require to make the determinations under paragraph (1);
and

(D)

such other information
and assurances as the Commission may require.

(3)

Determination of
reasonableness of costs

The
determinations under paragraph (1) of whether costs paid or incurred by a
jurisdiction are reasonable shall be made by the Commission.

(d)

Amounts

There are authorized to be appropriated to
the Commission such sums as may be necessary for payments under this section.
Any amounts appropriated pursuant to the authorization under this subsection
shall remain available until expended.

3.

Payments for Conducting
Manual Audits of Results of 2008 General Elections

(a)

Payments

(1)

Eligibility for
payments

If a State conducts manual audits of the results of any
of the regularly scheduled general elections for Federal office in November
2008 (and, at the option of the State, conducts audits of elections for State
and local office held at the same time as such election) in accordance with the
requirements of this section, the Commission shall make a payment to the State
in an amount equal to the documented reasonable costs incurred by the State in
conducting the audits.

(2)

Certification of
Compliance and Costs

(A)

Certification
required

In order to receive
a payment under this section, a State shall submit to the Commission, in such
form as the Commission may require, a statement containing—

(i)

a certification that the State conducted
the audits in accordance with all of the requirements of this section;

(ii)

a statement of the reasonable costs
incurred in conducting the audits; and

(iii)

such other information
and assurances as the Commission may require.

(B)

Amount of
payment

The amount of a
payment made to a State under this section shall be equal to the reasonable
costs incurred in conducting the audits.

(C)

Determination of
reasonableness of costs

The
determinations under this paragraph of whether costs incurred by a State are
reasonable shall be made by the Commission.

(3)

Timing of
payments

The Commission shall
make the payment required under this section to a State not later than 30 days
after receiving the statement submitted by the State under paragraph
(2).

(4)

Mandatory immediate
reimbursement of counties and other jurisdictions

If a county or
other jurisdiction responsible for the administration of an election in a State
incurs costs as the result of the State conducting an audit of the election in
accordance with this section, the State shall reimburse the county or
jurisdiction for such costs immediately upon receiving the payment from the
Commission under paragraph (3).

(5)

Authorization of
appropriations

There are authorized to be appropriated to the
Commission such sums as may be necessary for payments under this section. Any
amounts appropriated pursuant to the authorization under this subsection shall
remain available until expended.

(b)

Audit
Requirements

In order to receive a payment under this section for
conducting an audit, the State shall meet the following minimum
requirements:

(1)

Not later than 30 days
before the date of the regularly scheduled general election for Federal office
in November 2008, the State shall establish and publish guidelines, standards,
and procedures to be used in conducting audits in accordance with this
section.

(2)

The State shall select an appropriate
entity to oversee the administration of the audit, in accordance with such
criteria as the State considers appropriate consistent with the requirements of
this section, except that the entity must meet a general standard of
independence as defined by the State.

(3)

The State shall determine
whether the units in which the audit will be conducted will be precincts or
some alternative auditing unit, and shall apply that determination in a uniform
manner for all audits conducted in accordance with this section.

(4)

The State shall select
the precincts or alternative auditing units in which audits are conducted in
accordance with this section in a random manner following the election after
the final unofficial vote count (as defined by the State) has been announced,
such that each precinct or alternative auditing unit in which the election was
held has an equal chance of being selected, subject to paragraph (9), except
that the State shall ensure that at least one precinct or alternative auditing
unit is selected in each county in which the election is held.

(5)

The audit shall be
conducted in not less than 2 percent of the precincts or alternative auditing
units in the State (in the case of a general election for the office of
Senator) or the Congressional district involved (in the case of an election for
the office of Representative in, or Delegate or Resident Commissioner to, the
Congress).

(6)

The State shall determine
the stage of the tabulation process at which the audit will be conducted, and
shall apply that determination in a uniform manner for all audits conducted in
accordance with this section, except that the audit shall commence within 48
hours after the State or jurisdiction involved announces the final unofficial
vote count (as defined by the State) in each precinct in which votes are cast
in the election which is the subject of the audit.

(7)

With respect to each precinct or
alternative audit unit audited, the State shall ensure that a voter verified
paper ballot or paper ballot printout verifiable by the voter at the time the
vote is cast is available for every vote cast in the precinct or alternative
audit unit, and that the tally produced by counting all of those paper ballots
or paper ballot printouts by hand is compared with the corresponding final
unofficial vote count (as defined by the State) announced with respect to that
precinct or audit unit in the election.

(8)

Within each precinct or alternative audit
unit, the audit shall include all ballots cast by all individuals who voted in
or who are under the jurisdiction of the precinct or alternative audit unit
with respect to the election, including absentee ballots (subject to paragraph
(9)), early ballots, emergency ballots, and provisional ballots, without regard
to the time, place, or manner in which the ballots were cast.

(9)

If a State establishes a separate precinct
for purposes of counting the absentee ballots cast in the election and treats
all absentee ballots as having been cast in that precinct, and if the state
does not make absentee ballots sortable by precinct and include those ballots
in the hand count described in paragraph (7) which is administered with respect
to that precinct, the State may divide absentee ballots into audit units
approximately equal in size to the average precinct in the State in terms of
the number of ballots cast, and shall randomly select and include at least 2
percent of those audit units in the audit. Any audit carried out with respect
to such an audit unit shall meet the same standards applicable under paragraph
(7) to audits carried out with respect to other precincts and alternative audit
units, including the requirement that all paper ballots be counted by
hand.

(10)

The audit shall be
conducted in a public and transparent manner, such that members of the public
are able to observe the entire process.

(c)

Collection and
Submission of Audit Results; Publication

(1)

State submission of
report

In order to receive a payment under this section, a State
shall submit to the Commission a report, in such form as the Commission may
require, on the results of each audit conducted under this section.

(2)

Commission
action

The Commission may request additional information from a
State based on the report submitted under paragraph (1).

(3)

Publication

The
Commission shall publish each report submitted under paragraph (1) upon
receipt.

(d)

Delay in Certification
of Results by State

No State may certify the results of any
election which is subject to an audit under this section prior to completing
the audit, resolving discrepancies discovered in the audit, and submitting the
report required under subsection (c).

4.

Payments for Conducting
Hand Counts of Results of 2008 General Elections

(a)

Payments

(1)

Eligibility for
payments

If a State, county,
or equivalent location tallies the results of any regularly scheduled general
election for Federal office in November 2008 by conducting a hand count of the
votes cast on the paper ballots used in the election (including paper ballot
printouts verifiable by the voter at the time the vote is cast) in accordance
with the requirements of this section, the Commission shall make a payment to
the State, county, or equivalent location in an amount equal to the documented
reasonable costs incurred by the State, county, or equivalent location in
conducting the hand counts.

(2)

Certification of
compliance and costs

(A)

Certification
required

In order to receive
a payment under this section, a State, county, or equivalent location shall
submit to the Commission (and, in the case of a county or equivalent
jurisdiction, shall provide a copy to the State), in such form as the
Commission may require, a statement containing—

(i)

a certification that the State, county, or
equivalent location conducted the hand counts in accordance with all of the
requirements of this section;

(ii)

a statement of the reasonable costs
incurred by the State, county, or equivalent location in conducting the hand
counts; and

(iii)

such other information and assurances as
the Commission may require.

(B)

Amount of
payment

The amount of a
payment made to a State, county, or equivalent location under this section
shall be equal to the reasonable costs incurred by the State, county, or
equivalent location in conducting the hand counts.

(C)

Determination of
reasonableness of costs

The
determinations under this paragraph of whether costs incurred by a State,
county, or equivalent location are reasonable shall be made by the
Commission.

(3)

Timing of
payments

The Commission shall
make the payment required under this section to a State, county, or equivalent
location not later than 30 days after receiving the statement submitted by the
State, county, or equivalent location under paragraph (2).

(4)

Authorization of
appropriations

There are
authorized to be appropriated to the Commission such sums as may be necessary
for payments under this section. Any amounts appropriated pursuant to the
authorization under this subsection shall remain available until
expended.

(b)

Hand Counts
Described

(1)

In
general

A hand count
conducted in accordance with this section is a count of all of the paper
ballots on which votes were cast in the election (including paper ballot
printouts verifiable by the voter at the time the vote is cast), including
votes cast on an early, absentee, emergency, and provisional basis, which is
conducted by hand to determine the winner of the election and is conducted
without using electronic equipment or software.

(2)

Completeness

With respect to each jurisdiction in which
a hand count is conducted, the State, county, or equivalent location shall
ensure that a voter verified paper ballot or paper ballot printout verifiable
by the voter at the time the vote is cast is available for every vote cast in
the jurisdiction.

(c)

Process for Conducting
Hand Counts

(1)

In
general

In order to meet the
requirements of this section, a hand count of the ballots cast in an election
shall be conducted in accordance with the following procedures:

(A)

After the closing of the
polls on the date of the election, the appropriate election official shall
secure the ballots at the polling place (or, in the case of ballots cast at any
other location, at the office of the chief election official of the
jurisdiction conducting the hand count).

(B)

Beginning at any time
after the expiration of the 8-hour period that begins at the time the polls
close on the date of the election, the jurisdiction shall conduct an initial
hand count of the ballots cast in the election, using the ballots which are
eligible to be counted in the election as of the time the polls are
closed.

(C)

Any ballot which is eligible to be counted
in the election but which is not included in the initial count conducted under
subparagraph (B), including a provisional ballot cast by an individual who is
determined to be eligible to vote in the election or an absentee ballot
received after the date of the election but prior to the applicable deadline
under State law for the receipt of absentee ballots, shall be subject to a hand
count in accordance with this section and added to the tally conducted under
subparagraph (B) not later than 48 hours after the ballot is determined to be
eligible to be counted.

(D)

The hand count shall be conducted by a team
of not fewer than 2 individuals who shall be witnessed by at least one observer
sitting at the same table with such individuals. Except as provided in
paragraph (2), all such individuals shall be election officials of the
jurisdiction in which the hand count is conducted. The number of such
individuals who are members of the political party whose candidates received
the greatest number of the aggregate votes cast in the regularly scheduled
general elections for Federal office held in the State in November 2006 shall
be equal to the number of such individuals who are members of the political
party whose candidates received the second greatest number of the aggregate
votes cast in the regularly scheduled general elections for Federal office held
in the State in November 2006.

(E)

After the completion of
the hand count, the ballots may be run through a tabulating machine or scanner
for comparison with the tally, if such a machine or scanner is available. The
use of the tabulating machine or scanner shall be solely to compare with the
tally determined by the hand count and not to substitute another tally of the
ballots.

(2)

Use of other
personnel

An individual who
is not an election official of the jurisdiction in which a hand count is
conducted under this section may serve on a team conducting the hand count or
may serve as an observer of a team conducting the hand count if the
jurisdiction certifies that the individual has completed such training as the
jurisdiction deems appropriate to conduct or observe the hand count (as the
case may be).

(3)

Location

The hand counts conducted under this
section of the ballots cast in an election shall be conducted—

(A)

in the case of ballots cast at a polling
place on the date of the election, at the polling place at which the ballots
were cast; or

(B)

in the case of any other ballots, at the
office of the chief election official of the jurisdiction conducting the hand
count.

(4)

Information included in
results

Each hand count
conducted under this section shall produce the following information with
respect to the election:

(A)

The vote tally for each
candidate.

(B)

The number of overvotes, undervotes,
spoiled ballots, and blank ballots cast (or their equivalents, as defined by
the State, county or equivalent location).

(C)

The number of write-in
ballots and the names written in on such ballots pursuant to State law.

(D)

The total number of
ballots cast.

(E)

A record of judgement
calls made regarding voter intent.

(5)

Public observation of
hand counts

Each hand count
conducted under this section shall be conducted in a manner that allows public
observation of the entire process (including the opening of the ballot boxes or
removal of machine-printed ballots from their containers, the sorting,
counting, and notation of results, and the announcement of final
determinations) sufficient to confirm but not interfere with the
proceedings.

(6)

Establishment and
publication of procedures

Prior to the date of the regularly
scheduled general election for Federal office held in November 2008, a State,
county, or equivalent location shall establish and publish procedures for
carrying out hand counts under this subsection.

If a State, county, or equivalent location
uses a direct recording electronic voting system to conduct an election, the
State, county, or equivalent location may not receive a payment under this
section for conducting a hand count of the votes cast in the election unless
(in addition to meeting the other requirements applicable under this section)
the State, county, or equivalent location certifies to the Commission that each
such system produces a paper record printout of the marked ballot which is
verifiable by the voter at the time the vote is cast.

(2)

Treatment of paper
record printouts

In applying this section to a hand count
conducted by a State, county, or equivalent location which provides a
certification to the Commission under paragraph (1), the paper record printout
referred to in such paragraph shall be treated as the paper ballot used in the
election.

(e)

Announcement and
Posting of Results

Upon the
completion of a hand count conducted under this section, the State, county, or
equivalent location shall announce the results to the public and post them on a
public Internet site.

(f)

Use of Hand Count in
Certification of Results

The
State shall use the results of the hand count conducted under this section for
purposes of certifying the results of the election involved. Nothing in this
section may be construed to affect the application or operation of any State
law governing the recount of the results of an election.

5.

Study, Testing, and
Development of Products and Practices to Ensure Accessibility of Paper Ballot
Verification and Casting for Certain Individuals

(a)

Study, Testing, and
Development

The Director of
the National Institute of Standards and Technology (hereafter in this section
referred to as the Director) shall study, test, and develop
products and practices that ensure the accessibility of paper ballot
verification and casting for individuals with disabilities, for voters whose
primary language is not English, and for voters with difficulties in literacy,
including the mechanisms themselves and the processes through which the
mechanisms are used. In carrying out this subsection, the Director shall
specifically investigate existing and potential methods or devices, including
non-electronic devices, that will assist such individuals and voters in
creating voter-verified paper ballots, presenting or transmitting the
information printed or marked on such ballots back to such individuals and
voters in an accessible form, and enabling the voters to cast the
ballots.

(b)

Report

Not
later than June 30, 2009, the Director shall submit a report to Congress on the
results of the studying, testing, and development of products and practices
under subsection (a).

(c)

Authorization of
Appropriations

There are
authorized to be appropriated to the Director such sums as may be necessary to
carry out this section, to remain available until expended.

6.

Definitions

In this Act—

(1)

the term
Commission means the Election Assistance Commission; and

(2)

the term
State includes the District of Columbia, the Commonwealth of
Puerto Rico, Guam, American Samoa, and the United States Virgin Islands.

Amend the title so as to read:
A bill to direct the Election Assistance Commission to reimburse certain
jurisdictions for the costs of obtaining paper ballot voting systems for the
general elections for Federal office to be held in November 2008, to reimburse
jurisdictions for the costs incurred in conducting audits or hand counting of
the results of the general elections for Federal office to be held in November
2008, and for other purposes..

April 14, 2008

Committee on Science
and Technology discharged; committed to the Committee of the
Whole House on the State of the Union and ordered to be printed